It’s rare for an embattled pharmaceutical manufacturer, especially one facing multiple legal claims, to request consolidation. But on July 6, 2015, GlaxoSmithKline did just that, petitioning the US Judicial Panel on Multidistrict Litigation (JPML) to transfer all Federally-filed Zofran birth defect lawsuits before a single Federal judge.
In its initial motion for transfer, the company argued that forming a Multidistrict Litigation (MDL) would benefit all parties involved, by allowing for coordinated pretrial proceedings, including evidence gathering, and harmonizing potential rulings.
Despite the fact that no Zofran lawsuits are filed in Pennsylvania, the company requested that claims be transferred to the US District Court for the Eastern District of Pennsylvania under the management of either Judge Cynthia M. Rufe or Judge Paul S. Diamond. GlaxoSmithKline contended that Pennsylvania was the most appropriate venue because the company maintains a major headquarters in Philadelphia, and many witnesses, along with relevant evidence, would be found there.
Plaintiffs Dispute GlaxoSmithKline’s Consolidation Preferences
A total of 19 current plaintiffs responded on July 28, filing 15 individual briefs with the JPML.
A characteristic example, filed by a couple who brought their Zofran claim in the US District Court for the Eastern District of Arkansas, can be found below:
No plaintiff disputed the benefits of consolidating Zofran birth defect lawsuits. Plaintiffs agreed that the currently-filed complaints share common questions of law and fact, and that coordinating pretrial proceedings would “conserve the resources of the parties, their counsel and the judiciary.”
But on a pertinent issue, plaintiffs expressed strong disagreement with GlaxoSmithKline’s stated preferences: the company’s choice of consolidation venue.
Plaintiffs suggested a number of alternative venues, which they argued would be more appropriate for the transfer of Zofran claims:
- the Northern District of Alabama, in which 6 Zofran lawsuits have been filed
- the Northern District of Ohio, in which 5 lawsuits have been filed
- the District of Massachusetts, in which 4 lawsuits have been filed
- the Eastern District of Louisiana, in which 3 lawsuits have been filed
- the Northern District of California, in which 2 lawsuits have been filed
- the Southern District of Illinois, in which 2 lawsuits have been filed
In their briefs, Plaintiffs argued that the Eastern District of Pennsylvania is already heavily burdened by other Multidistrict Litigations; currently, 9 MDLs are active in that court. In the Northern District of Alabama, on the other hand, there are only two open MDLs.
Plaintiffs noted that a manufacturer’s headquarters may be taken into account in selecting an appropriate transfer venue, but that a court’s close proximity to “witnesses and relevant evidence” is not always deemed crucial to the JPML’s decision.
They referred to an MDL involving the blood thinner drug Xarelto, whose manufacturer argued that claims should be centralized where it was headquartered, in New Jersey. After considering other factors, the JPML selected the Eastern District of Louisiana, citing in part the high volume of lawsuits filed there.
Glaxo Maintains Pennsylvania Is Best MDL Venue
On August 5, 2015, counsel for GlaxoSmithKline submitted a new reply to the US Judicial Panel on Multidistrict Litigation. In the court document obtained by Monheit Law, lead sponsor of Zofran.Monheit.com, GlaxoSmithKline doubled-down on its preferred venue for consolidation.
Reiterating its argument stressing the importance of proximity to relevant evidence and witnesses, the company said “the Eastern District of Pennsylvania remains the most convenient location for coordinated pretrial proceedings.”
You can read GlaxoSmithKline’s response below:
The company’s filing also presented the legal community with the most comprehensive picture of the Zofran litigation to date.
Where Have Zofran Lawsuits Been Filed?
Writing that the need for consolidation has “only increased,” Glaxo’s brief mentioned that 21 new claims have been filed in the two months since the company’s initial motion to transfer. Thus at least 33 Zofran lawsuits have been filed in Federal courts across the country:
- Alabama – 6 claims
- Arkansas – 1 claim
- California – 2 claims
- Delaware – 1 claim
- Florida – 1 claim
- Illinois – 2 claims
- Louisiana – 3 claims
- Massachusetts – 4 claims
- Mississippi – 2 claims
- Montana – 1 claim
- New Jersey – 1 claim
- New York – 1 claim
- North Dakota – 1 claim
- Ohio – 5 claims
- Texas – 2 claims
As Zofran lawsuits continue to mount, the legal community eagerly awaits the US Judicial Panel on Multidistrict Litigation’s decision. While a date of decision has not been announced, the JPML is scheduled for a hearing session on October 1.